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CORPORATIONS ACT 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS    View history reference

PART 7.3 - LICENSING OF CLEARING AND SETTLEMENT FACILITIES    View history reference

Division 2 - Regulation of CS facility licensees    View history reference

Subdivision C - Powers of the Minister, ASIC and the Reserve Bank in relation to licensees    View history reference

SECTION 823D  DIRECTIONS POWER - PROTECTING DEALINGS IN FINANCIAL PRODUCTS AND ENSURING FAIR AND EFFECTIVE PROVISION OF SERVICES BY CS FACILITIES  

 View history reference

823D(1)  [Power to give directions to CS facility licensee]  


If ASIC:


(a) considers that it is necessary, or in the public interest, to protect people dealing in a financial product or class of financial products; or


(b) considers that a CS facility licensee has not done all things reasonably practicable to ensure the facility's services are provided in a fair and effective way;

ASIC may give the licensee written advice that it intends to give the licensee a specified direction under this section. The advice must include the reasons for ASIC's intention to give the direction.

823D(2)  [Notice to operator of financial market]  


As soon as practicable after giving the advice to the licensee, ASIC must give notice of the advice to the operator of each financial market with which the facility has arrangements to provide services for transactions effected through the market.

823D(3)  [Scope of direction]  


For the purpose of remedying the matter mentioned in subsection (1), ASIC may give the following directions to the licensee under this section:


(a) a direction not to provide the licensee's services in relation to any transactions, of which the licensee receives notice after the direction takes effect, that relate to a specified financial product or class of financial products;


(b) any other direction concerning dealings with transactions that relate to a specified financial product or class of financial products.

823D(4)  [Further direction]  


If, after receiving ASIC's advice and reasons:


(a) the licensee does not take steps that in ASIC's view are adequate to address the situation; and


(b) ASIC still considers that it is appropriate to give the direction to the licensee;

ASIC may give the licensee the direction, in writing, with a statement setting out the reasons for giving the direction.

823D(5)  [Compliance with direction]  


The direction has effect until the earlier of the following times:


(a) the time ASIC revokes the direction in accordance with subsection (10);


(b) the end of the period (which may be up to 21 days) specified in the direction as the period during which the direction is effective ends.

While the direction has effect, the licensee must comply with the direction and must not provide any services contrary to it.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

823D(6)  [Enforcement of direction]  


If the licensee fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the licensee comply with the direction.

823D(7)  [Notice to Minister and others]  


As soon as practicable after making or varying (see subsection (9)) a direction, ASIC must:


(a) give a copy of the direction or variation to:


(i) if the direction relates to a specified financial product - the issuer of that product; and

(ii) each of the operators mentioned in subsection (2); and


(b) give a written report to the Minister setting out ASIC's reasons for making the direction or variation; and


(c) give a copy of the report to the licensee.

823D(8)  [Referral to Minister]  


If, at any time after the licensee receives ASIC's advice under subsection (1), the licensee requests in writing that ASIC refer the matter to the Minister, ASIC must do so immediately. In that event, the Minister may, if he or she considers it appropriate, require ASIC not to make, or to revoke, the direction. ASIC must immediately comply with such a requirement.

823D(9)  [Variation of direction]  


ASIC may vary a direction by giving written notice to the licensee.

823D(10)  [Revocation of direction]  


ASIC may revoke a direction by giving written notice to the licensee. ASIC must also give written notice of the revocation to each of the operators mentioned in subsection (2).


 



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